Patients continue legal fight for medical marijuana

September 01, 2009

Pamela Hughes doesn't see herself as a criminal. Neither does Winnie Gesumwa. But both have been arrested, put through the court system and faced jail time for using marijuana, not for pleasure, but to cope with harrowing illnesses.

"I had to fight an arrest that should not have occurred, because as long as I was using the cannabis, I was cancer-free and pain-free," said Hughes, a 49-year-old Silver Spring resident who has battled cancer and the muscle disease fibromyalgia for years.

Hughes, who has had her ovaries and both breasts removed due to cancer, said marijuana was the only thing that got her through the migraine headaches, sleep deprivation, appetite loss and general pain of fibromyalgia and chemotherapy.

Gesumwa, 19, began smoking marijuana last summer to treat her epilepsy and the frequent blackouts she suffers as a result of the disease. She said her symptoms decreased after she started using marijuana.

Eventually the two Silver Spring women were spared significant jail time by a little-known state law that allows for a maximum $100 fine for those convicted of marijuana possession if the drug was used medicinally. But attorneys, state lawmakers and medical marijuana advocates say the state needs to do more to educate the public about the law and to keep those with serious diseases out of the court system altogether.

"We are dead set in making sure these patients don't have to go through the courts and fund a lawyer and the costs that go along with that," said Caren Woodson, director of government affairs in the Washington, D.C., office of the California-based medical marijuana advocacy group, Americans for Safe Access. "I'm a citizen of Maryland, I don't want my taxes to go to waste for something that's a $100 fine."

In February, police responded to complaints of marijuana smoke from an apartment on Sligo Avenue and arrested three people, including Gesumwa, who had 17 small bags of marijuana with a street value of $170 in her purse, according to court documents. She spent a night in jail and was charged with a felony count of possession of a controlled dangerous substance with the intent to distribute.

"It was cold and scary," Gesumwa said of her night in prison.

While speaking after her sentencing at Montgomery County Circuit Court Thursday, she suffered a "black out" and needed a recent conversation to be repeated.

Hughes was arrested in spring 2004 while smoking marijuana in a park, because she wanted to keep it away from her young child. She handed the officer a doctor's note recommending she use marijuana to treat her illnesses.

She also gave him a document she doesn't leave home without.

It was a copy of the Darrell Putnam Compassionate Use Act, passed by the General Assembly in 2003 and dedicated to a former Army Green Beret and conservative activist from Howard County, who used marijuana to treat his cancer in the final months before his death in 1999.

An amendment to the law passed in 2006 defined which diseases could be defended by medical marijuana. They included HIV and AIDS, cancer, sickle cell anemia and seizures, among others.

Hughes said the officer didn't know why either document was significant and arrested her. But the doctor's recommendation proved to a judge that she was using marijuana medicinally, and she received a $100 fine with no probation.

But had she faced trial and needed a private attorney, she says she would've gone broke, because her diseases derailed her career as a paramedic.

On Thursday, Circuit Court Judge Andrew L. Sonner allowed the Putnam Act as a defense in Gesumwa's case, and the Montgomery College student with no prior convictions walked out of the courthouse with what amounted to a slap on a wrist.

"Epilepsy is always bubbling on the surface, and it can explode at any moment," said Alex Foster, Gesumwa's Rockville-based attorney. "… Marijuana addresses that ‘bubbling-on-the-surface' quality that's always there."

Foster said he had never heard of the law prior to this case, and state medicinal marijuana advocates say he's not alone. Woodson said her organization doesn't keep track of all uses of the Putnam Act in the state, but estimates Americans for Safe Access sees fewer than 10 per year.

As a result, the law relies too much on often-uninformed judges' opinions, especially with doctors prohibited from prescribing marijuana, Woodson said.

"It sounds good, it feels good and it seems right, but without an expert witness or medical records, how can we prove anything?" Assistant State's Attorney Stephen Chaikin, the prosecutor of Gesumwa's case, argued in court Thursday.

While the Putnam Act has saved people like Hughes and Gesumwa from jail time, its enactment was supposed to lead to more progressive steps in giving medicinal marijuana users protection. But seven years later, Woodson is still waiting for the next step.

In March, Woodson and Hughes testified before the House Judiciary Committee to support state Del. Henry B. Heller's bill that would establish a task force to evaluate the current medical marijuana law and consider whether it should become legal in the state.

The bill died before the committee chairman could even review it.

"There's the sense they have already dealt with this issue, and there's no reason to go back to it," said Naomi Long, director of the Washington, D.C., Metropolitan Area office for the Drug Policy Alliance.

Heller (D-Dist. 19) said he has never used marijuana, but many of his neighbors at the Leisure World retirement community in Silver Spring have, and that's why he pushed for the bill.

Despite the Putnam Act, patients who use marijuana still have to obtain it by their own means. Both Hughes and Gesumwa gave money to friends who purchased the marijuana for them, and for Heller's neighbors, the task is even more daunting.

"They wouldn't know where to buy marijuana in Maryland," Heller said earlier this summer. "… Ask your grandson in junior high school? Could you get granny a nickelbag?"

Gesumwa said she has not smoked marijuana since her arrest and has seen a recurrence in "blackouts." But she is wary of using it again because of the social stigma associated with marijuana and the lengthy legal process.

"It's a lot of work for something that could have been easily figured out," she said.

Hughes continues to use marijuana as the sole medication for her fibromyalgia and the lingering pain from cancer, after being prescribed 23 different drugs since her original diagnosis in 1990. Since she started smoking marijuana in 2001, she has only stopped once, after she and her child were denied housing assistance in 2004 because she listed marijuana on an application.

At that point, she was smoking four times a day to treat severe pain and insomnia following surgery to have her second breast removed in 2004 (while in the hospital following the surgery, she refused to take oxycontin and smoked outside the building with a doctor's permission).

But after facing homelessness, she stopped smoking so she and her son could live at a shelter. After beating cancer twice over the past 15 years, the cancer came back. The resulting radiation caused her to lose use of her left hand, she said.

Eventually she applied for social security because of her illness and got her house back. She began smoking again immediately. Weeks later, in October 2005, she was declared cancer-free once again.

She now works for Americans for Safe Access with no definitive plans to return to a career in medicine, where the best advice she could give is still considered illegal.